2.This appeal is directed against the Judgment and Order of the
Division Bench, High Court of Judicature at Bombay in Writ Petition No.7301/02
dated 3.2.2006 whereby the writ petition filed by the Union of India, appellant
herein impugning the order dated 20.12.2001 passed by the Central
Administrative Tribunal (hereinafter referred to as the `Tribunal') in Original
Application No.669/1997. By that order 2 the respondents have been held
entitled to the allowance as envisaged in D.O.P.T. letter dated 31.3.1987. Direction
had also been issued to grant the allowance to the respondents @ 30 per cent of
the emoluments w.e.f. 1.1.1986 and @ 15 per cent w.e.f. 9.7.1992.

3.Before the Tribunal it was the case of the appellants that O.M.
dated 31.3.1987 and consequentially O.M. dated 9.7.1992 were not applicable to
Respondents as they were members of the permanent faculty of the Institute of
Armament Technology. This plea of the Appellants was rejected by the Tribunal.
The Tribunal accepted the claim of the respondents that they worked in the
Naval College of Engineering, as civilian employees belonging to the Defence
Research and Development Services (hereinafter referred to as `DRDS'). They
were aggrieved by the fact that they were not being paid training allowance @
30 per cent of the emoluments w.e.f. 1.1.1986 and @ 50 per cent of the
emoluments w.e.f. 9.7.1992 in as much as they were employees in the I.A.T. as
Scientists but are detailed as faculty members for training 3 other government
officials. It was claimed that the training allowance was admissible to them as
part of an incentive scheme of the Government of India set out in Department of
Personnel, O.M. dated 31.3.1987. The Tribunal relied on Part 2(i) of the
aforesaid O.M. which is as follows:

"2(i)
When an employee of Government joins a training institution meant for training
government officials, as a faculty member other than as a permanent faculty
member, he will be given a "training allowance" at the rate of 30 per
cent of his basic pay drawn from time to time in the revised scales of
pay."

4.Before the Tribunal, the appellants claimed that the respondents
were not entitled to the aforesaid benefit as they were permanent faculty
members. The allowance was only admissible to faculty members other than permanent
faculty members. It was the claim of the appellants that the respondents held
cadre posts included in the DRDS and therefore were not entitled to training
allowance. The Tribunal rejected the aforesaid plea. Therefore, the appellants
moved the High Court by way of a writ petition under Article 226 of the
Constitution of India. The aforesaid writ petition was 4 dismissed by the
Division Bench with the following observations:

"The
petitioners have not produced any service rules to show that IAT has a different
cadre or that the respondents were recruited by any advertisement for specific
posts in IAT. No such material was produced nor could be produced, considering
the various admissions made by the petitioners themselves that the respondents
were recruited as scientists, in terms of recruitment rules for scientists in
D.R.D.O. and have also been promoted under the said rules. Mere continuation in
the said posts for a long time cannot result in the posts held by the
petitioners becoming permanent posts in I.A.T. What clinches the issue is that
the promotion to the respondents were not given under any rules framed by IAT
but the promotions were based on rules framed by DRDO, like any other employee
in DRDO. In the circumstances, the finding of the fact recorded by the Tribunal
that there are no posts in IAT, does not suffer from any error of law apparent
on the face of the record nor it can be said that the finding is perverse,
based on no material or by ignoring relevant material."

5.Learned counsel appearing for the appellants (Union of India)
submits that the aforesaid observations came to be made as the provisions of
the Defence Research Development Service Rules, 1979 (amended and incorporated
upto October 2008) were not brought to the notice of the High Court.

Learned
counsel has brought to our notice that the aforesaid 5 Rules have been made by
the President of India in exercise of the powers conferred by the proviso to
Article 309 of the Constitution of India. These Rules came into force on
13.1.1979, when they were published in the Gazette of India in accordance with
the provisions contained in Rule 1, sub-Rule

2. Rule
2, sub-Rule 9 defines service to mean the "Defence Research and
Development Service." The aforesaid Rule provides that different categories
of scientists shall be members of the service provided they fall within any of
the categories enumerated in Rule 5. According to the learned counsel all the
respondents would be governed by the provisions of the Rule 5. A perusal of the
observations made by the High Court would show that the claim of the appellant
has been rejected on the ground that the appellant had failed to produce any
service rules governing the service conditions of the respondents.

6.In our opinion, the observations made by the High Court need
reconsideration in view of the Rules now produced before this Court.
Consequently, we allow this appeal and set aside 6 the Judgment and Order
passed by the Division Bench in Writ Petition No.7301/02 dated 3.2.2006. The
matter is remanded back to the High Court for deciding the writ petition afresh
on merits after taking into consideration the Defence Research Development
Service Rules, 1979. Parties are at liberty to approach the High Court for
filing further pleadings that may be necessary for the complete adjudication of
the issues arising in the writ petition.